SHAIL SHRIVASTAVA Vs. MAGMA FINCORP LTD.

JUDGEMENT

(1.) In a arbitral proceeding rendered between the appellant and the respondent herein, the award was passed by sole Arbitral Tribunal on 15/7/2010 in favour of the respondent herein at Kolkata and thereafter in order to execute the award, execution was levied by the respondent herein on 11/6/2012 at Bilaspur. During pendency of the execution application, the appellant herein filed an application under Sec. 34 of the Arbitration and Conciliation Act, 1996 (hereinafter called as "AC Act") for setting aside arbitral award on 27/11/2012 at Principal Civil Court, Bilaspur, in which the respondent appeared and filed an application under Order 7, Rule 11 of the Code of Civil Procedure, 1908 (hereinafter called as "CPC") for rejection of said application stating inter-alia that the Principal Civil Court, Bilaspur has no jurisdiction to consider the application under Sec. 34 of the AC Act. Learned Principal Civil Court, Bilaspur by its impugned award granted that application filed by the respondent under Order 7, Rule 11 of the CPC and rejected the application filed by the appellant under Sec. 34 of the CPC. Questioning that order, this arbitration appeal has been filed by the appellant herein under Sec. 37 (1) (b) of the AC Act.

(2.) Mr. Anoop Mazumdar, learned counsel for the appellant, would submit that the appellant has already levied execution application under Sec. 36 of the AC Act before the Principal Civil Court, Bilaspur, therefore, by virtue of the provisions contained in Sec. 42 of the AC Act, the Principal Civil Court, Bilaspur will have the jurisdiction to entertain the application under Sec. 34 of the AC Act. Therefore, the impugned order is liable to be set aside and the said Court be directed to consider the application of the appellant on merits in accordance with law. He placed strong reliance of the judgment rendered by the Supreme Court in the matters of State of West Bengal and others vs. Associated Contractors (2015) 1 SCC 32 and State of Maharashtra through Executive Engineer, Road Development Division No.111, Panvel and another vs. Atlanta Limited (2014) 11 SCC 619.

(3.) On the other hand, Mr.Sunil Otwani, learned counsel for the respondent would submit that the appellant cannot be allowed to take recourse of Sec. 42 of the AC Act as Sec. 42 of the AC Act would not apply in execution application. He relied upon the judgment of the Supreme Court in the matters of Swastik Gases Private Limited vs. Indian Oil Corporation Limited (2013) 9 SCC 32, B.E. Simoese Von Staraburg Niedenthal and another vs. Chhattisgarh Investment Limited (2015) 12 SCC 225, Indus Mobile Distribution Private Limited vs. Data wind Innovations Private Limited and others (2017) 7 SCC 678 and Sundaram Finance Limited represented by J. Thilak, Senior Manager (Legal) vs. Abdul Samad and another (2018) 3 SCC 622.